Standing Up for Speech: Student Argues at 8th Circuit

When Ashford Kneitel entered UCLA School of Law last year, the possibility that he would argue a case before a federal appeals court was furthest from his mind.

But on Oct. 19, Kneitel seized his chance when he traveled to St. Paul, Minnesota, and made his case before a panel of three judges on the U.S. Court of Appeals for the Eighth Circuit in Sisney v. Kaemingk, which concerns a prisoner’s free speech rights. “The case is essentially about the right of prisoners to read,” he says.

Kneitel represented an organization called the National Coalition Against Censorship, whose friend-of-the-court brief he had helped research and write with fellow students in UCLA Law’s Scott and Cyan Banister First Amendment Clinic.

The clinic is overseen by Eugene Volokh, UCLA Law’s Gary T. Schwartz Distinguished Professor of Law, and it has filed amicus curiae briefs in more than 50 state and federal appeals court cases in five years. In 11 of those matters, Volokh has delivered oral argument, and Kneitel’s participation marks the second time this year that judges have granted a UCLA Law student special permission to appear.

“Students very rarely get a chance to argue in real appellate cases, which makes this an especially valuable educational opportunity,” says Volokh, who adds that this matter is doubly important because it zeroes in on a vital area of legal doctrine. “Prisoners’ First Amendment rights are limited,” he says, “but they do exist.”

The inmate in this case, Charles Sisney, sued over South Dakota’s prohibition of sexually explicit material in prisons, a policy that prevents sending or receiving pictures or text that are deemed objectionable. This has resulted in a ban on pornography, as well as books featuring classic works of art by Michelangelo; Japanese comic books; issues of magazines including National Geographic; and even UCLA professor Jared Diamond’s Pulitzer Prize-winning historical tome Guns, Germs, and Steel, likely because it includes photos that Diamond took while doing fieldwork with nomadic tribes in Papua New Guinea.

Because the prohibition sweeps up materials that contain even passing references to sex, the trial court ruled in Sisney’s favor, holding that the policy was “unconstitutionally overbroad,” a common failure of laws that seek to curb speech. “We’re arguing that the Eighth Circuit should affirm that decision, and set a precedent that will be binding in that circuit and persuasive throughout the country,” Volokh says.

Sisney’s attorney, Steven Morrison, notes that “prisoners’ First Amendment rights are limited by legitimate penological interests, which are relatively mundane here — prison security, trying to prevent harassment of corrections officers, and rehabilitation.” In this instance, he argues, those limits have exceeded the bounds of the law.

Morrison is a professor at the University of North Dakota School of Law who was assigned to represent Sisney, and he worked with a team of his own law students in drafting his briefs and preparing for oral argument. Further recognizing that this is an important First Amendment matter, he opted to bolster his case by bringing in Volokh and the UCLA Law clinic. “Those are pretty influential names,” he says. “The court will pay more attention.”

He also agreed to turn over a quarter of his argument time to Kneitel. “Ashford only argued for five minutes, but his preparation covered hours,” Morrison says. “He became intimately familiar with the entire case, he worked to anticipate the judges’ questions, and he worked to be prepared with accurate, succinct, compelling answers to those questions. All of that preparation is going to serve him exceptionally well in his career.”

Kneitel, a third-year student who transferred to UCLA Law from UC Irvine School of Law, honed his argument through extensive study of case law and four moot court simulations with UCLA Law professors who coached him on his presentation. “There is no better way to prepare than by being grilled nonstop for nearly an hour by some of the smartest legal minds in the country,” he says.

It was perfect practice for the real thing a few weeks later. “While I was predictably nervous in the days leading up to the argument, my nerves settled once I started speaking,” says Kneitel, who once worked as a craps dealer in Las Vegas and is eyeing a career in trial and appellate litigation.

“Many practicing attorneys have told me that most lawyers go their entire lives without arguing before a circuit court,” he marvels. “It goes without saying that this might be a once-in-a-lifetime experience — although I hope this was the first of many for me!”